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Sengupta v. Wickwire (12/09/2005) sp-5963
Sengupta v. Wickwire (12/09/2005) sp-5963
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| MRITUNJOY SENGUPTA,
| ) |
|
| ) Supreme Court No. S-
11232 |
|
Appellant, | ) |
|
| ) Superior Court
No. |
|
v. | ) 4FA-02-00713
CI |
|
| ) |
|
THOMAS R. WICKWIRE, | ) O P I N I O
N |
|
| ) |
|
Appellee. | ) [No. 5963 -
December 9, 2005] |
|
| ) |
|
|
|
|
Appeal from the Superior Court of the State
of Alaska, Fourth Judicial District,
Fairbanks, Richard D. Savell, Judge.
Appearances: Mritunjoy Sengupta, pro se,
Mill Creek, Washington, Appellant. Thomas R.
Wickwire, pro se, Law Office of Thomas
Wickwire, Fairbanks, Appellee.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
FABE, Justice.
I. INTRODUCTION
Mritunjoy Sengupta was a tenured professor at the
University of Alaska Fairbanks. He was terminated for cause
after a hearing officer found that he had presented false
evidence during a university grievance hearing. Sengupta
appealed his termination to the superior court. The superior
court affirmed, and Sengupta informed his attorney that he wished
to appeal that decision to the Alaska Supreme Court. His
attorney filed the appeal late and it was dismissed. Sengupta
then brought a lawsuit against the university alleging various
violations of his constitutional rights. On appeal, this court
held that Senguptas claims were barred by res judicata because he
did not timely appeal the superior courts decision in his
termination proceedings. Sengupta then brought this malpractice
action against his attorney, alleging that the attorney failed to
file a timely appeal and failed to raise certain claims on
Senguptas behalf. Because Senguptas attorney only agreed to
appeal a single issue, we affirm the superior courts grant of
summary judgment to the attorney.
II. FACTS AND PROCEEDINGS
A. Senguptas Grievances Against the University of Alaska
Fairbanks (Parrish Hearing)
Mritunjoy Sengupta was a tenured professor of Mining
Engineering at the University of Alaska Fairbanks (UAF). In 1992
and 1993 Sengupta filed three grievances against UAF, asserting
that he was not considered for promotion to acting head of his
department or director of the Mining and Mineral Resource
Research Institute, and that he should have received various pay
increases.1 James Parrish served as the hearing officer for
Senguptas grievance proceedings.2 Thomas Wickwire was Senguptas
lawyer.
On June 24, 1994, Parrish issued a lengthy written
decision dismissing Senguptas grievances. Parrish found that
Sengupta was not a credible witness and that he had repeatedly
and purposefully been untruthful during the grievance
proceedings. Parrish found that during the hearing Sengupta
presented false documents, lied about being laid off from a
previous job, and lied about unfounded public attacks he had made
against colleagues. Parrish also found that Sengupta had
mischaracterized his degree on his resume, that he had
plagiarized the work of another professor, and that Sengupta and
his wife had improperly accessed the bank account of a UAF
student in an attempt to attack the professional reputation of
another professor.
After Parrish issued his findings, Wickwire wrote a
letter to Sengupta recommending that he initiate a communication
process with the university chancellor to try to repair any
damage done during the grievance hearings. Wickwire cautioned
that he thought it likely that the chancellor might initiate
disciplinary proceedings against Sengupta based on the Parrish
findings. Wickwire informed Sengupta that he believed Mr.
Parrish [had] done a very thorough job of evaluating the evidence
in detail and logically reasoning through the evidence on each
point to reach his conclusions. Based on this letter, Sengupta
decided not to appeal the Parrish decision.
B. UAF Termination Proceedings Against Sengupta (Rice
Hearing)
On September 1, 1994, UAF initiated termination
proceedings against Sengupta based on the findings of Hearing
Officer Parrish.3 Sengupta requested and was granted a pre-
termination hearing. Sengupta also filed a grievance against
UAF, asserting that the termination was improper retaliation for
his earlier grievances in violation of a UAF regulation
prohibiting retaliation.4 The university chancellor determined
that the retaliation claim should be decided in the pending pre-
termination hearing, rather than in a separate grievance
proceeding.5 The pre-termination hearing was held on December
12, 1994 before Hearing Officer Julian Rice.6 Sengupta appeared
pro se at this hearing. Rice issued a decision on January 17,
1995, in which he recommended that Sengupta be terminated for
cause. Rice afforded collateral estoppel to the Parrish findings
and concluded that the University is not obligated to relitigate
all of the issues covered at length in the previous grievance
proceeding. Rice made a number of findings similar to those made
by Hearing Officer Parrish.
On January 19, 1995, the university chancellor wrote
Sengupta to inform him that she had accepted Rices
recommendations and that Sengupta would be discharged for cause.
The chancellor informed Sengupta that he could appeal the
decision to the university president and then pursue judicial
review if he wished. Sengupta appealed to the university
president and his appeal was rejected.7
C. Senguptas Appeal to the Superior Court (Hodges
Decision)
On February 23, 1995, Sengupta appealed his termination
to the superior court.8 Wickwire served as Senguptas attorney
for this appeal, along with attorney Robert Groseclose. In his
appeal to the superior court, Sengupta argued that: (1) under
university regulations, Senguptas termination proceedings should
have included a hearing before other tenured faculty members in
his department; (2) Rice should not have afforded collateral
estoppel to issues decided during Senguptas grievance
proceedings; (3) many of Parrishs findings during the grievance
proceedings were not relevant to Senguptas grievances; and (4)
Sengupta was entitled to a hearing on his second grievance
alleging retaliation.
On August 20, 1996, Superior Court Judge Jay Hodges
issued a decision affirming UAFs termination of Sengupta. Judge
Hodges also affirmed UAFs decision to dismiss all of Senguptas
grievances, including the grievance alleging retaliation.
D. Senguptas Attempt To Appeal Judge Hodgess Decision
On August 29, 1996, Groseclose wrote Sengupta a letter
informing him of Judge Hodgess decision. Groseclose informed
Sengupta that [a]ny appeal must be filed by September 19, 1996
and cautioned, I hazard a preliminary assessment that it is
unlikely the Alaska Supreme Court will conclude differently from
the Superior Court. To do so, the Alaska Supreme Court, through
independent review, would have to conclude that an error of law
occurred. Groseclose again informed Sengupta that his right of
appeal would expire on September 19, or thirty days from the
issuance of the superior courts decision.
On September 2, 1996, Sengupta wrote Groseclose and
Wickwire and informed them that he wished to appeal Judge Hodgess
decision. Sengupta enclosed a list of conclusions made by the
superior court that he believed to be erroneous. On September
12, 1996, Wickwire wrote a letter to Sengupta indicating that he
would handle the appeal. In the letter, Wickwire limited the
scope of his representation to a single issue:
This confirms our phone conversation of
September 12, 1996 regarding my agreement to
pursue your appeal. I agree to handle the
appeal and briefing of Judge Hodges decision
for the purpose of raising just one issue:
that Judge Hodges erred in concluding that
you had to accept the administrative hearing
before Julian Rice, instead of an
administrative determination by the tenured
faculty of your unit, as you had requested.
Wickwire filed a notice of appeal with this court on November 1,
1996, forty-three days after the deadline. The appeal challenged
the superior courts conclusion that Sengupta did not have a right
to a hearing before his tenured colleagues and was required to
accept a hearing before a hearing officer. On November 29, 1996,
we issued an order dismissing Senguptas appeal because it was
untimely.
E. Senguptas 1997 Lawsuits Against UAF and Sengupta v.
University of Alaska
After Senguptas appeal was dismissed, he consulted a
new attorney, Robert Sparks. On January 14, 1997, Sengupta filed
a complaint against UAF in superior court asserting claims
relating to his termination, denial of a request for sick leave,
and an alleged salary disparity. Sengupta brought claims under
42 U.S.C. 1983 alleging that UAF had violated his freedom of
speech, right to due process, and equal protection; under 42
U.S.C. 1981 alleging discrimination on the basis of color and
national origin; and under Title VII of the Civil Rights Act of
1964, 42 U.S.C. 2000(e), alleging employment discrimination.
On March 29, 1997, Sengupta filed a second complaint
against UAF in superior court adding a cause of action to set
aside prior judgments as void because of alleged due process
violations and alleged fraud, misrepresentation, and misconduct
on the part of UAF.9 Superior Court Judge Mary E. Greene granted
summary judgment to UAF on all of Senguptas claims in both
lawsuits and awarded partial attorneys fees to UAF.10
Sengupta appealed to this court. In Sengupta v.
University of Alaska, we affirmed Judge Greenes grant of summary
judgment because: (1) Senguptas 1983 claims relating to sick
leave and salary level were barred by a two-year statute of
limitations;11 (2) Senguptas 1983 claim alleging due process
violations at the Parrish hearing was barred by a two-year
statute of limitations; (3) Sengupta could not object to Hearing
Officer Rices application of collateral estoppel to the findings
in the Parrish hearing because Judge Hodges affirmed Rices
application of collateral estoppel and Sengupta failed to file a
timely appeal of Judge Hodgess decision;12 (4) collateral estoppel
precluded Senguptas 1983 claims asserting due process violations
at the Rice hearing because Judge Hodges determined that Sengupta
had been afforded due process and Sengupta failed to file a
timely appeal of Judge Hodgess decision;13 (5) res judicata
precluded Sengupta from asserting his First Amendment claims in a
separate 1983 action because he could have asserted them at
either the Parrish hearing or the Rice hearing but did not, and
because he did not appeal Judge Hodgess decision;14 (6) Sengupta
did not produce any evidence to support his 1983 equal
protection claim;15 (7) Sengupta did not produce any evidence to
support his claim that UAF had fraudulently concealed documents
from him;16 (8) UAF regulations did not entitle him to a pre-
termination hearing before a faculty panel;17 and (9) Sengupta did
not meet his threshold burden to produce circumstantial evidence
supporting his mixed motive discrimination claims under Title VII
and 1981.18
F. Senguptas Current Malpractice Action Against Wickwire
On March 26, 2002, Sengupta filed a pro se complaint
against Thomas Wickwire19 alleging malpractice and breach of
contract.20 The complaint asserts that [a]t all periods of
representation . . . the defendant failed to protect plaintiffs
record, failed to raise appropriate claims, failed to timely file
an appeal and generally failed to properly represent and protect
the interests of the plaintiff.
Sengupta moved for partial summary judgment, asserting
that if Wickwire had filed the appeal from Judge Hodgess decision
on time, Sengupta would have prevailed in his claims that UAF did
not afford Sengupta due process during his pre-termination
hearings and that Rice improperly applied collateral estoppel to
the Parrish findings. Sengupta also claimed that Wickwire should
have raised his First Amendment claims during one of his two
administrative hearings. Wickwire also moved for summary
judgment, arguing that all of Senguptas claims against him were
time-barred.
On August 19, 2003, Superior Court Judge Richard D.
Savell granted summary judgment to Wickwire on all of the claims.
Sengupta moved for relief from judgment under Alaska Civil Rule
60(b) following the issuance of Judge Savells decision. Sengupta
claimed that the superior court erred by issuing a judgment
without addressing Senguptas claim that, had Wickwire filed the
appeal on time, Sengupta would have prevailed in arguing that he
should have been afforded a pre-termination hearing by the
tenured faculty of his unit. Judge Savell denied the motion and
issued a final judgment dismissing all of Senguptas claims.
Sengupta filed this appeal.
III. DISCUSSION
A. Standard of Review
We review a grant of summary judgment de novo and will
affirm if there are no genuine issues of material fact and the
moving party is entitled to judgment as a matter of law.21 When
reviewing a grant of summary judgment, we draw all reasonable
inferences in favor of the party against whom summary judgment is
entered.22 A trial courts determination regarding the applicable
statute of limitations is a question of law that we review de
novo.23 The determination of the date on which a cause of action
accrued is a factual finding and is reviewed for clear error.24
B. Senguptas Claim of Retaliation for Free Speech
Sengupta moved for partial summary judgment on his
malpractice claim against Wickwire, asserting that he could have
prevailed in his first appeal to this court if Wickwire had
argued at the Parrish hearing that UAF retaliated against
Sengupta in violation of his First Amendment rights. Sengupta
also argued that Wickwire should have raised the retaliation for
free speech claim in the administrative appeal before Judge
Hodges. The superior court denied Senguptas motion for partial
summary judgment and granted summary judgment to Wickwire on
Senguptas retaliation for free speech malpractice claim on the
ground that Senguptas claim was time-barred.
As the superior court correctly noted, a six-year
statute of limitations applies to professional malpractice
actions accruing before August 7, 1997, as long as the action
claims economic loss.25 For actions accruing after August 7, 1997
and claiming economic loss, a three-year statute of limitations
applies.26 Malpractice actions claiming personal or reputational
injury are governed by a two-year statute of limitations.27 The
superior court determined that Senguptas complaint primarily
alleged economic harm, applied the six-year statute of
limitations to Senguptas retaliation for free speech malpractice
claim, and concluded that it was time-barred. We agree that the
six-year statute of limitations applies, but we conclude that
even if Senguptas claim is not time-barred because the
limitations period did not accrue until Sengupta learned from his
new attorney that he had a potential malpractice claim, any error
was harmless.
The statute of limitations ordinarily begins to run on
the date the plaintiff is injured. However, we apply the
discovery rule to professional malpractice actions.28 Under the
discovery rule, the cause of action accrues when the plaintiff
has information sufficient to alert a reasonable person to the
fact that he has a potential cause of action. At that point, he
should begin an inquiry to protect his . . . rights and he is
deemed to have notice of all facts which reasonable inquiry would
disclose.29 The limitations period begins to run when a client
discovers or reasonably should have discovered all the elements
of the cause of action, and suffers actual damages.30
This standard raises the question whether Sengupta
should have begun to inquire about Wickwires conduct when
Sengupta was terminated, or whether the statute of limitations
was tolled until Sengupta learned from another attorney that
Wickwire might have neglected to pursue certain claims. The
superior court determined that Sengupta knew of the facts upon
which he bases his free speech malpractice claim prior to March
26, 1996, six years before Sengupta filed his complaint.31 The
superior court therefore concluded that Senguptas claim was time-
barred by the six-year statute of limitations.
Sengupta argues that he did not discover that Wickwire
had failed to raise his retaliation for free speech claim until
his new attorney, Robert Sparks, advised him of the potential
claim in January 1997. He relies on Preblich v. Zorea, in which
we observed that the date on which a client should reasonably
discover the existence of a cause of action depends upon all of
the surrounding circumstances.32 We reasoned that the
circumstances include consideration of [the clients]
sophistication in the particular area of knowledge and noted that
Preblich [was] not an attorney and could not be expected to
immediately recognize the inadequacy or consequences of [her
lawyers] poor representation or lack of action.33 Senguptas
argument is that because as a layman he could not reasonably have
been expected to know that he had a potential retaliation for
free speech claim prior to learning about it from Sparks, it
follows that he could not have known until then that he had a
potential malpractice action against Wickwire for failing to
raise the claim. But we need not decide this question. Even if
the superior court erred when it determined that Senguptas claim
was time-barred, the error was harmless because the only
retaliation claim Wickwire could have raised at the Parrish
hearing related to UAFs denial of Senguptas request for a raise,
which is not an issue in this appeal.
At Senguptas initial grievance hearing, Parrish found
that Sengupta had made false allegations about colleagues in a
letter he sent to a state representative, the Governor, and the
state board of engineering. Sengupta claims that Wickwire should
have argued that Senguptas letter was protected by the First
Amendment. But Sengupta argues only that UAF retaliated against
him when it terminated him following the Parrish hearing. As the
superior court notes, UAF did not take action to terminate
Sengupta until after the Parrish hearing. Thus, the logical
forum for raising the retaliation for free speech claim would
have been at the Rice pre-termination hearing, where Sengupta
appeared pro se. Although Wickwire could have raised the
retaliation claim in connection with Parrishs decision to deny
Senguptas grievances regarding pay and promotions, these
grievances are not issues in this appeal.34
Senguptas argument that Wickwire should have raised the
retaliation issue during the administrative appeal before Judge
Hodges is similarly without merit. This issue would have been
considered waived in the appeal before Judge Hodges because
Sengupta did not raise it when he appeared pro se during the Rice
hearing.35 Because Wickwire could not have raised Senguptas
retaliation for free speech claim in connection with his
termination at either the Parrish hearing or during the Hodges
appeal, we affirm the superior courts grant of summary judgment
to Wickwire on this issue.36
C. Wickwires Failure To Appeal Judge Hodgess Decision in a
Timely Manner
Senguptas remaining claims involve Wickwires failure to
appeal Judge Hodgess decision in a timely manner. Sengupta
argues that if Wickwire had filed the appeal on time, Sengupta
could have won his appeal to this court on the questions whether
his due process was violated at the pre-termination hearing and
whether Rice improperly afforded collateral estoppel to the
Parrish findings.37 Sengupta argues that the superior court erred
in granting summary judgment to Wickwire on the ground that
Wickwire limited the scope of his representation to a single
issue for the appeal of Judge Hodgess decision.38
Sengupta argues that he wished to appeal the entirety
of Judge Hodgess decision and that he understood that his appeal
would include all of the points stated in Senguptas September 2,
1996 letter to Wickwire. Sengupta also argues that he could have
amended or supplemented his appeal to include more issues and
that this court could have reviewed all issues of law presented
to Judge Hodges, regardless of which issues Sengupta actually
appealed.
Sengupta did not present any evidence to the superior
court indicating that he did not receive Wickwires letter or that
he did not agree to the terms of the representation at the time
Wickwire sent the letter. In fact, Sengupta states in an
affidavit that Wickwire signed an agreement with Sengupta on
September 12, 1996. This acknowledgment of an agreement
apparently refers to Wickwires letter limiting the scope of his
representation in the appeal to a single issue: that Judge
Hodges erred in concluding that [Sengupta] had to accept the
administrative hearing before Julian Rice, instead of an
administrative determination by the tenured faculty of
[Senguptas] unit. Sengupta paid Wickwire $10,000, as the letter
requested, and when Wickwire did file the late appeal, he only
included the single issue identified in the letter. Sengupta
failed to provide any evidence to the trial court to support his
argument that he understood that all of the issues would be
appealed, or that he would have personally appealed additional
issues. All of the evidence points to the agreement that
Wickwire would only appeal a single issue.
The superior court did not address whether Sengupta was
harmed by Wickwires failure to file a timely appeal on the single
issue that he did agree to appeal: whether Sengupta was entitled
to a pre-termination hearing before a faculty panel.39 This
omission is harmless because Sengupta cannot establish that he
was injured by Wickwires failure to appeal this issue in a timely
manner. In Sengupta v. University of Alaska, we concluded that
Sengupta was not entitled to a pre-termination hearing before a
faculty panel under the UAF regulations in effect at the time of
his termination proceedings.40 Sengupta therefore could not have
prevailed on this claim even if Wickwire had filed his appeal on
time. Because Wickwire and Sengupta agreed to limit the scope of
Wickwires representation to a single point on appeal, we affirm
the superior courts grant of summary judgment to Wickwire.41
IV. CONCLUSION
For the reasons discussed above, we AFFIRM the superior
courts order granting summary judgment to Wickwire on all issues.
_______________________________
1 Sengupta v. Univ. of Alaska, 21 P.3d 1240, 1245-46
(Alaska 2001).
2 Id. at 1246.
3 Id.
4 Id. at 1247. At this time, Sengupta did not argue that
his discharge was retaliatory in violation of his constitutional
right to free speech.
5 Id.
6 Id. at 1246.
7 Id.
8 Id. at 1247.
9 Sengupta, 21 P.3d at 1247.
10 Id. at 1247-48.
11 Id. at 1249-50.
12 Id. at 1250.
13 Id. at 1250, 1255 n.61.
14 Id. at 1254, 1255.
15 Id. at 1254-55.
16 Id. at 1256-57.
17 Id.
18 Id. at 1259. Our decision also affirmed the superior
courts denial of Senguptas request for a continuance, denial of
his motion to amend the judgment of dismissal, and award of
attorneys fees to UAF. Id. at 1259-62.
19 The complaint also names Wickwires wife as a defendant.
20 A plaintiff must prove four elements to prevail in a
legal malpractice claim:
(1) the duty of the professional to use such
skill, prudence, and diligence as other
members of the profession commonly possess
and exercise; (2) a breach of that duty; (3)
a proximate causal connection between the
negligent conduct and the resulting injury;
and (4) actual loss or damage resulting from
the professionals negligence.
Tush v. Pharr, 68 P.3d 1239, 1244 (Alaska 2003) (internal
quotation marks and citations omitted).
21 Morgan v. Fortis Benefits Ins. Co., 107 P.3d 267, 269
(Alaska 2005).
22 Id.
23 Alderman v. Iditarod Prop., Inc., 104 P.3d 136, 140
(Alaska 2004).
24 Id.
25 Preblich v. Zorea, 996 P.2d 730, 734 n.11 (Alaska 2000)
(citing Breck v. Moore, 910 P.2d 599, 603 (Alaska 1996)); see
also former AS 09.10.050 (ch. 26 3-4, SLA 1997).
26 Preblich, 996 P.2d at 734 n.11; AS 09.10.053.
27 Breck v. Moore, 910 P.2d 559, 603 (Alaska 1996); Lee
Houston & Assocs., Ltd. v. Racine, 806 P.2d 848, 855 (Alaska
1991); AS 09.10.070.
28 Preblich, 996 P.2d at 734.
29 Id. (internal quotation marks and citations omitted).
30 Beesley v. Van Doren, 873 P.2d 1280, 1283 (Alaska
1994).
31 Sengupta filed his complaint on March 26, 2002.
32 Id. at 736 (citing Breck, 910 P.2d at 604).
33 Id.; see also Greater Area Inc. v. Bookman, 657 P.2d
828, 829 (Alaska 1982) (adopting discovery rule for malpractice
actions because clients are often not equipped to detect
malpractice when it occurs).
34 Sengupta states in his reply to Wickwires opposition to
his partial summary judgment motion that Sengupta is not claiming
any salary raise loss as damage against Wickwire in this
complaint.
35 See Brandon v. Corrections Corp. of Am., 28 P.3d 269,
280 (Alaska 2001) (concluding that argument not raised below was
waived).
36 Sengupta also argues that Wickwire committed
malpractice by failing to argue that Parrish was not validly
appointed as a hearing officer. This argument was not raised
below and is therefore waived. Id.
37 Sengupta also argues that he could have proved that UAF
did not meet its burden of proof at the pre-termination hearing
because it adopted the findings from the grievance hearing, where
Sengupta had the burden of proof. This argument is an element of
his collateral estoppel argument.
38 Alaska Rule of Professional Conduct 1.2(c) permits a
lawyer to limit the scope of the representation if the limitation
is reasonable under the circumstances and the client consents
after consultation. The comment to this rule states that a
lawyer is not required to pursue objectives or employ means
simply because a client may wish that the lawyer do so. Alaska
R. Prof. Conduct 1.2(c) & comment.
39 Following Judge Savells decision, Sengupta moved for
relief from judgment, arguing that his case should go to trial on
the question whether Wickwire committed malpractice by failing to
appeal Judge Hodgess decision that Sengupta was not entitled to a
pre-termination hearing before a faculty panel. Judge Savell
denied the motion and entered a final judgment.
40 21 P.3d at 1256-57.
41 Sengupta stated at oral argument that Wickwire owes him
money relating to Wickwires representation. The record reflects
that the parties had a hearing regarding fees before a fee
arbitration panel. If Wickwire has not complied with the fee
arbitration panels decision, Senguptas remedy is to contact the
Alaska Bar Association. See Alaska Bar Rule 34 (outlining
general principles of fee dispute resolution).
